SC to see if a CM can play double role; blasts cops for letting Sec 144 be breached

New Delhi, Jan 24 (PTI): Chief Minister Arvind Kejriwal's role in leading a protest while holding a constitutional office was questioned before Supreme Court on Friday, with the apex court also asking the police chief to explain how his men allowed the unlawful assembly of Aam Aadmi People supporters.

Last week, Kejriwal and his supporters had squatted outside Rail Bhavan when the police had stopped their planned march to the home ministry office. The dharna continued for two days even though the police had brought the area under Section 144 of Code of Criminal Procedure, which bars assembly of five and more persons.

“How did they (people) assemble when prohibitory orders under secton 144 of CrPC was clamped? Why did you let it happen in the first place when the mob is already there,” a bench of justices R M Lodha and Shiva Kirti Singh asked Delhi Police Commissioner B S Bassi.

“Why did police at all permit people to gather when it will amount to breach of prohibitory orders? What we are inclined to know is whether police acted,” the bench said while adding that “by allowing five people it swelled into 500 and thereafter into thousands”.

The court asked the police chief to file his explanation by January 31.

The court said it has two questions. First, why did the police allow the prohibitory orders to be defied. Second, whether they informed the unlawful assembly to disperse, and then took steps to do so.

The bench, which was hearing a public interest litigation filed by advocate M L Sharma, issued notice to the Centre through the Ministry of Home Affairs and Delhi Government and sought their response within sex weeks on the issue whether constitutional post holder can resort to agitation in violation of law.

“Constituion is supreme and every institution is a product of Constitution and every individual who holds the office is governed by the Constitution,” the bench observed while adding that “We are only concerned with Constitutional issues”.

It agreed to examine “whether chief minister/minister is allowed to play a double role, i.e. holding constitutional office and street agitator against the constitutional systems in the same time, under the Constitution of India?

The bench also tagged the petition filed by another advocate N Rajaraman, who also raised identical issues.

Before seeking explanation from the Delhi Police Commissioner, the bench raised several questions to Additional Solicitor General Siddharth Luthra, who had contended that there was no need to go into the petition filed by Rajaraman as the prayers made by him has become infructuous.

Luthra had submitted that police had swung into action on January 19 evening by issuing prohibitory orders but people violated it and started gathering around the site of Kejriwal's dharna the next day.

When the ASG explained the process for dealing the violation of prohibitory order, the bench questioned why there was delay on the part of the cops to disperse the unlawful assembly of people.

“These are matters of law and order. How did they (people) assemble. Mob is already there and you are allowing the gathering to swell,” the bench said and added that law enforcing agencies should have acted under the legal provision by issuing a command that people should disperse.

“Our concern is when we are empowered to enforce law why did it allow it to happen (unlawful assembly),” the bench said. When ASG said police generally wait for 45 minutes after the command, the bench declined to accept his explanation and gave an example of the terror strike at World Trade Centre in United States. “In three minutes, the WTC collapsed in US,” the bench said.

In the PIL, the advocate has raised questions whether chief minister can highlight any demand via means other than permitted constitutional systems under Article 256.

The petitioner asked whether chief minister/ minister have any legal authority to act as a police officer under CrPC/ Constitution to raid or detain any women in the midnight.

He wanted to know whether chief minister/ minister can violate constitutional provision & breach the oath of office/ secrecy what they took under the third schedule of the constitution? He asked whether chief minister/ minister are liable to be removed or not for the unconstitutional action/ misbehavior/ criminal offence of IPC.